Madras High Court

S.Venkatesan vs N.Ananda Selva Kingly on 27 April, 2021

                                                                            C.M.A.No.3281 of 2012

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 27.04.2021

                                                           CORAM:

                                   THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 C.M.A.No.3281 of 2012

                     S.Venkatesan                                             ... Appellant

                                                           Versus

                     1. N.Ananda Selva Kingly
                     2. The New India Assurance Co. Ltd.,
                        No.46, Moore Street, Chennai – 1.
                     (The 1st respondent exparte in
                     lower Court)                                             ... Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, against the order and decree dated 17.07.2008 made in
                     M.C.O.P.No.2217 of 2004 on the file of the Motor Accident Claims
                     Tribunal, II Fast Track Court, Chennai.


                                           For Appellant     : Mr.K.Varadha Kamaraj

                                           For Respondents
                                                 For R1    : Exparte
                                                 For R2    : Mr.K.Vinoth




                     Page 1 of 10


https://www.mhc.tn.gov.in/judis/
                                                                               C.M.A.No.3281 of 2012


                                                   JUDGMENT

This appeal is laid as against the judgment and decree dated

17.07.2008 passed by the Motor Accident Claims Tribunal, II Fast Track

Court, Chennai, in M.C.O.P.No.2217 of 2004, thereby awarded the

compensation to the tune of Rs.4,52,000/-

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status before the Tribunal.

3. The case of the claimant is that on 01.04.2004, when the

claimant was riding his motor cycle, a vehicle owned by the first respondent

driven by its driver in rash and negligent manner in the opposite side and

dashed against the motor cycle. Due to which, the claimant sustained head

injuries, right leg both bones fracture, right thigh fracture, fracture in right

hand, fracture in neck and lacerations wound all over the body. Immediately,

he was taken to the hospital and treated as inpatient on 01.04.2004 and he

had undergone surgery. The claimant was admitted in hospital for ten times

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3281 of 2012

and undergone various surgery on his right leg, right thigh and also right

hand. Hence the claimant filed claim petition seeking compensation of

Rs.15,00,000/-.

4. Resisting the same, the second respondent filed counter and

denying the age of the claimant, monthly income and negligent on the part

of the driver of the vehicle owned by the first respondent. The accident took

place only on the rash and negligent driving of the claimant and therefore,

the second respondent is not at all liable to pay any compensation and

sought for dismissal of the claim petition.

5. On the side of the claimant, he examined P.W.1 & P.W.2 and

marked Ex.A.1 to Ex.A.18. On the side of the respondents, no one was

examined as witness and no material has been marked as exhibit. On the

basis of the evidence available on records and also considering the

submission made by the learned counsel appearing on either side, the

Tribunal awarded a sum of Rs.4,52,000/- as compensation payable by the

second respondent. Being not satisfied with the quantum of the

compensation awarded by the Tribunal, the claimant came forward with the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3281 of 2012

present appeal for enhancement.

6. The learned counsel appearing for the appellant/claimant

submits that the Tribunal adopted multiplier method of 10 instead of 18,

since the accident took place at the age of the claimant at 22 years. Further

the Tribunal deducted 1/3rd expenditure, in the case of injury. The Tribunal

also failed to award any amount under the head of attender's charges and

other heads. Therefore, he prayed for enhancement of the award amount.

7. Per contra, the learned counsel appearing for the second

respondent contended that though the claimant suffered fracture in his right

leg and hand, there is no proof for any permanent disability of 65%. It is

only partial disability and due to which no loss of income to the claimant.

Even then, the Tribunal applied multiplier method of 10 and as such the

award itself higher side and just and fair compensation. Further the Tribunal

also awarded 100% of disability, without calculating the assessed disability

for 65%. Therefore he prayed for dismissal of the appeal.

8. Heard Mr.K.Varadha Kamaraj, learned counsel appearing for

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3281 of 2012

the claimant and Mr.K.Vinoth, learned counsel appearing for the second

respondent.

9. On 01.04.2004, when the claimant riding his motor cycle, a

vehicle owned by the first respondent driven by its driver in rash and

negligent manner in the opposite side and dashed against the motor cycle.

Due to which, the claimant sustained head injuries, right leg both bones

fracture, right thigh fracture, fracture in right hand, fracture in neck and

lacerations wound all over the body. Immediately, he was taken to the

hospital and treated as inpatient on 01.04.2004 and he had undergone

surgery. The claimant was admitted in hospital for ten times and undergone

various surgery on his right leg, right thigh and also right hand.

10. The liability was fixed on the driver of the first respondent's

vehicle and due to the accident, the claimant sustained fracture on his right

hand, right thigh and both bones on the right leg. On perusal of Ex.P.2 to

Ex.P.12, the claimant was admitted into various hospital as inpatient and

had undergone various surgery. Due to which, he was assessed permanent

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3281 of 2012

disability of 65% by P.W.2. There is no contra evidence to rebut the same on

the side of the second respondent.

11. That apart, the Tribunal had taken the monthly income of the

injured as Rs.5,000/- and after deducting 1/3rd income for his personal

expenses and applied the multiplier method of 10. Admittedly, it is a case of

injury and there is no question of deduction in the income towards personal

expenditure. At the same time, the Tribunal had taken disability as 100%

and calculated the award amount. More over, the multiplier should be

adopted at 18 and the compensation calculated at 65% of the disability. The

monthly income has to be taken at Rs.4,000/- per month, without deducting

1/3rd towards personal expenditure. Accordingly, the loss of income by the

claimant is calculated as follows :-

= 4000 X 65% X 18 X 12

= 2600 X 18 X12

= 5,61,600

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3281 of 2012

Accordingly, a sum of Rs.5,61,600/- has to be awarded under the head of

loss of income to the claimant.

12. Apart from that the Tribunal awarded very low compensation

for, pain & sufferings, transportation and extra nourishment and failed to

award any compensation under the head of attender's charges and loss of

amenities. Therefore, this Court is inclined to grant a sum of Rs.20,000/-

towards pain & sufferings, a sum of Rs.15,000/- towards transportation

charges and a sum of Rs.10,000/- towards extra nourishment and to award a

sum of Rs.15,000/- and Rs.10,000/- towards attender's charges and loss of

amenities respectively.

13. Accordingly the compensation awarded by the Tribunal stands

modified as under :-

                      Sl.No               Heads             Awarded by the       Awarded by this
                                                              Tribunal               Court
                          1        Loss of income              3,60,000              5,61,600
                          2        Pain and sufferings          15,000                20,000
                          3        Medical bills                67,000                67,000
                          4        Transportation                5,000                15,000




https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A.No.3281 of 2012

                      Sl.No               Heads              Awarded by the         Awarded by this
                                                               Tribunal                 Court
                          5        Extra nourishment              5,000                  10,000
                          6        Attender's charges              Nil                   15,000
                          7        Loss of amenities               Nil                   10,000
                                                                4,52,000                6,98,600

14. In the result the Civil Miscellaneous Appeal is partly allowed

as follows:-

(i) The award passed by the Tribunal is enhanced from Rs.4,52,000/-

to Rs.6,98,600/-

(ii) The award amount will carry the interest at the rate of 7.5% per

annum from the date of the claim petition till the date of deposit.

(iii) The respondent is directed to deposit the award amount, less

the amount, if any, already deposited, along with accrued interest within a

period of six weeks from the date of receipt of copy of this Judgment.

(iv) On such deposit, the claimant is permitted to withdraw the

amount awarded as above by filing proper application before the Tribunal.

(v) The appellant/claimant is not entitled to any interest for the